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en-usTechdirt. Stories about "gema"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Tue, 1 Nov 2016 16:30:52 PDTYouTube Finally Buries The Hatchet With GEMA, Meaning People In Germany Can Watch Videos AgainMike Masnickhttps://www.techdirt.com/articles/20161101/14393535937/youtube-finally-buries-hatchet-with-gema-meaning-people-germany-can-watch-videos-again.shtml
https://www.techdirt.com/articles/20161101/14393535937/youtube-finally-buries-hatchet-with-gema-meaning-people-germany-can-watch-videos-again.shtmlnoted that the fight between German collection society GEMA and YouTube had gone on way too long, it looks like it's finally been settled. If you don't know, way back when, GEMA, which is effectively a mandatory copyright royalty collector in Germany, demanded insane rates for any music streaming on YouTube. Apparently, it initially argued that a stream on YouTube was no different than a purchase on iTunes, and thus it should be paid the same rate. In 2009, it asked for 17 cents per video view (which was a decrease from the 37.5 cents per stream it had asked for earlier). 17 cents. Anyone who knows anything about how the internet works and how advertising works knows that's insane. YouTube was paying out a decent chunk of its advertising revenue to other collection societies at a fraction of a penny per view, which is inline with the potential ad revenue.

This created a huge mess in Germany, where tons of YouTube views were blocked -- even when the creators have properly licensed the music. GEMA just threw up a big "no." This is why, when I was in Berlin a few years ago, talking with musicians, one of them showed me how his band had an "official" website that GEMA knew about and an unofficial secret "real" website, where his band could actually distribute its own music, without GEMA interfering. Think about that for a second. GEMA was regularly blocking musicians from doing what they wanted with music so it could try to shake down YouTube/Google for ransom.

And it went on until now. Six or seven years ago, Germany was the only major country where the local collection society could not come to an agreement with YouTube and it took until now to finally sort this out. There's no word on the final amount, though I imagine it will come out at some point. GEMA is crowing about the fact that this will cover payments back to 2009, though, since so many videos on YouTube in Germany were blocked from that point onward, think of all the views and all the money that GEMA deliberately blocked users from ever receiving. Either way, the common practice of seeing that a video is "not available" in Germany is now mostly over. There are apparently some videos, for music not represented by GEMA that will remain blocked, but this is a big step forward.

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]]>took-'em-long-enoughhttps://www.techdirt.com/comment_rss.php?sid=20161101/14393535937Mon, 1 Feb 2016 03:29:21 PSTYouTube Wins This Round In Germany In The Stupid Neverending War With GEMA Over Streaming RatesMike Masnickhttps://www.techdirt.com/articles/20160129/15494333464/youtube-wins-this-round-germany-stupid-neverending-war-with-gema-over-streaming-rates.shtml
https://www.techdirt.com/articles/20160129/15494333464/youtube-wins-this-round-germany-stupid-neverending-war-with-gema-over-streaming-rates.shtmlyears, the big German music performance rights organization GEMA has been at war with YouTube over what rates YouTube must pay for any streamed music. It started with GEMA more or less arguing that a stream on YouTube was effectively the same as a purchased download on iTunes, and that it should get $0.17 per stream (yes, per stream). For anyone who understands even basic economics you'd recognize that's not even remotely in the realm of reality. The battle has gone on ever since, and unlike basically every other country in the world GEMA has refused to budge. Because of this YouTube has blocked most major label music from its service in Germany, while GEMA has filed a variety of lawsuits against YouTube in the country arguing that YouTube is somehow responsible for what YouTube users upload.

In the latest round, YouTube scored a victory as a court rightly found that YouTube is a neutral platform and not liable for a user's uploads. According to David Meyer at Fortune:

On Thursday, the higher regional court of Munich rejected GEMA’s claim for damages to the tune of around €1.6 million ($1.75 million). If you’re wondering, that figure represents royalties for 1,000 music videos chosen as examples, at a rate of 0.375 euro cents per view. The court upheld a judgement by the lower regional court in Munich, which said YouTube is just a host for uploaded video.

Meyer also notes that GEMA will likely appeal, so it's not over yet. He also notes, of course, that the rate demanded, while still insane, is at least lower than what GEMA was originally asking for.

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]]>copyright insanityhttps://www.techdirt.com/comment_rss.php?sid=20160129/15494333464Thu, 2 Jul 2015 15:52:26 PDTGerman Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown ProcessMike Masnickhttps://www.techdirt.com/articles/20150702/13004331529/german-court-says-youtube-isnt-liable-infringement-wants-notice-and-staydown-process.shtml
https://www.techdirt.com/articles/20150702/13004331529/german-court-says-youtube-isnt-liable-infringement-wants-notice-and-staydown-process.shtmlmany years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:

“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”

While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.

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]]>that's-troublinghttps://www.techdirt.com/comment_rss.php?sid=20150702/13004331529Thu, 25 Jul 2013 19:27:19 PDTFed Up Germans Are Trying To Crowdfund A GEMA Alternative That Isn't EvilMike Masnickhttps://www.techdirt.com/articles/20130723/01535623897/germans-fed-up-with-gema-trying-to-crowdfund-alternative-that-isnt-evil.shtml
https://www.techdirt.com/articles/20130723/01535623897/germans-fed-up-with-gema-trying-to-crowdfund-alternative-that-isnt-evil.shtmlGEMA can be. I've been to Germany a few times over the past few years, and have spoken to musicians who tell me horrifying stories about how you basically have to sign up with GEMA, and then GEMA controls what you can do with your music. For example, I met a band that wanted to license its music under a Creative Commons license, but GEMA doesn't like to recognize such licenses. Another band showed me its "official" website, which it told GEMA about, and then its "real" website, which it told its fans about, where the band could actually put up their own music for free. GEMA is basically controlled by the legacy interests and only pays attention to a small group of very successful musicians. Everyone else is left out in the cold. There's a reason why GEMA is the only major collection society that still hasn't worked out a deal with YouTube.

Last year we wrote about some folks in Germany who were trying to do something about this, starting a competing collection society that understood that "free" wasn't necessarily a bad thing, and which actually respected its members and the new opportunities presented by the internet, beyond looking at them all as a cash register to shake as much money as possible out of. This organization, called C3S or the Cultural Commons Collecting Society is finally getting off the ground, and wouldn't you know it, they're turning to crowdfunding to make it work. Within a very short period of time, they've raised over €34,000 of the €50,000 target -- though they are really aiming for €200,000.

They point out that they're not against traditional licensing at all, but think there's room for a more forward looking organization that recognizes both traditional licensing and more modern options that many musicians want. Furthermore, unlike GEMA, C3S is designed to be open, social and democratic. This should be an interesting project, worth following.

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]]>about timehttps://www.techdirt.com/comment_rss.php?sid=20130723/01535623897Thu, 16 May 2013 00:08:00 PDTHow GEMA Is (Still) The Worst 'Collective Rights' Organization In The WorldTim Cushinghttps://www.techdirt.com/articles/20130425/17042522839/how-gema-is-still-worst-collective-rights-organization-world.shtml
https://www.techdirt.com/articles/20130425/17042522839/how-gema-is-still-worst-collective-rights-organization-world.shtml
We've discussed GEMA's antagonistic attitude towards, well, pretty much everyone other than itself. In addition to turning the German YouTube experience into a farcical collection of "Sorry" faces and demanding fees for music it doesn't even control, GEMA has also been in the news due to its rollout of a "streamlined" fee structure that threatens the existence Germany's underground club scene with unsustainable licensing rates.

Luis Manuel Garcia at Resident Advisor has put together a very thorough and excellently written rundown of the recent events, covering GEMA's attempts to "streamline" its licensing fee structure (and its adverse effects) and explaining some of the organization's idiosyncrasies. (This is a very nice word for GEMA's thuggish tactics that go beyond villainy to cartoonish supervillainy.) There are a few differences between GEMA and other performance rights organizations (BMI, ASCAP, PRS, etc.). Much of this has been covered here before at Techdirt, so I'll give you some of the high/low points of GEMA's services, with some added details from Garcia.

Rather than being limited to "public performance rights," GEMA handles "collective rights management" for its 64,000 German members and 2,000,000 worldwide members. GEMA still collects licensing fees from businesses but its power goes much, much further than ASCAP's or BMI's.

GEMA decides how to distribute your work... and at what price.

This means that music-makers don't sign over ownership of their music upon joining GEMA, they sign over their usage rights—the right to legally manage and collect licensing fees for playback, reproduction and broadcast of their music. This is a convenient arrangement when you're a small-time musician who doesn't have the time or money to manage your catalogue; but these management decisions are taken out of your hands. If you want to grant a free license to a charity event or offer a reduced fee for a career-advancing event, you'll find that decision isn't yours to make.

All music is assumed to be under GEMA's control unless the artist can prove otherwise.

This distribution scheme is unlikely to change in the hands of GEMA. Its so-called "full members" (members who have achieved over €30,000 in GEMA revenue over a five-year period) are the only members allowed to vote on issues or hold controlling positions. Any artist not within this elite group has to watch his or her fees being redistributed to already wealthy artists while being prevented from attempting to effect any change in the prevailing structure.

GEMA assumes (like other PROs) that every venue plays only music from top-selling artists.

For underground music venues that mainly feature non-mainstream and independent artists—like many dance music clubs—this means that a portion of the fees collected for these events will likely find their way into the bank accounts of mainstream artists and advertising jingle writers, whose music was never played during the event, while some artists will never see a single cent for their music, however popular it may be.

GEMA splits music into three categories which affect rates collected and royalties paid and arbitrarily decides for the artists what category their music falls under.

It classifies music into three categories: entertainment [Unterhaltungsmusik], serious music [Ernste Musik] and functional music [Funktionsmusik]. It then subjects these categories to different fee rates, membership requirements and weighting in the points system they use to calculate royalties. Unsurprisingly, U-Musik gets the worst of this arrangement, having the highest membership requirements, the highest fee rates and the lowest values for royalty calculations

Unlike other PROS, GEMA is a "for-profit" organization that enjoys a government-granted monopoly and legal powers.

Making all of this worse is the fact that GEMA is a private interest "for-profit" organization, unlike most PROs which operate under a "non-profit" status. GEMA also operates as a monopoly, a problem made worse by the German government's decision to grant it legal power to "protect" the rights of its members.

How GEMA went from bad to worse

For years, the German government seemed to have no problem with GEMA's tactics and monopolistic operation. In fact, its only complaint was directed at GEMA's complex fee structure. GEMA responded to this by streamlining its rates with a clear eye on maximizing income. It was required to negotiate these changes with club owners and other affected parties, but its monopoly position basically turned the discussion into GEMA stating, "Here are your new fees," and walking away from the table.

Negotiations broke down sometime in late 2011, however, and an attempt to initiate legal arbitration failed as well. GEMA therefore decided to go ahead without the negotiations or arbitration and published a new tariff structure in the Bundesanzeiger (Federal Gazette) in April 2012, which effectively made the new tariffs legally-binding.

Now, the venues being hit hardest were nightclubs, especially underground clubs that catered to non-mainstream crowds and played non-mainstream music. GEMA's "streamlined" fee structure was built from the sort of opportunistic math that could only come from a self-interested monopoly. Any concessions to reality were thrown out the window in search of higher fees.

GEMA's opportunistic math

First, GEMA killed off yearly flat rates and replaced them with "per-event" charges. Supposedly, this was to "balance" fees between large and small venue owners. GEMA even claimed this would reduce fees for 60% of its "customers." But once it applied its GEMA-friendly calculations, everyone was guaranteed to see an increase in licensing costs.

GEMA calibrated the new rate for dance clubs (Tarif M-V) with the goal of charging approximately 10% of the gross income for a music event. Of course, they don't trust organizers to self-report their revenues accurately, so they estimate the gross income based on venue size and price of entry, and then charge 10% of that.

This estimation is based on three assumptions: 1) the capacity of a venue is one person per square-meter, measured wall-to-wall (i.e. beyond the dance floor and ignoring solid objects like furniture); 2) the event is full to capacity; 3) everyone is paying full price for entry.

This sort of mathematical assumption would ruin any normal business. Fortunately for GEMA, it's a government-ordained monopoly which exists solely to extract fees. The more it extracts, the healthier it is. Under the old flat-rate structure, a 500 square meter club would have paid around €7,800 annually. Under GEMA's new plan, this leapt to over €78,000.

When club owners complained about this exorbitant rate hike, GEMA responded (belatedly) with a nominal attempt at "fairness."

In answer to complaints about these distorted results, GEMA later introduced the Angemessenheitsregel (appropriateness rule), which allows promoters to apply for a partial refund if GEMA fees are well over 10% of actual gross income or if the venue's capacity is well under GEMA's one person / m2 ratio.

In other words, club owner would still need to pay up front and hope GEMA would cut them a (partial) refund check sometime in the next several months. Seeing as GEMA doesn't trust club owners to honestly self-report revenues (hence the lousy fee structure), it wouldn't be surprising if it decided these refund requests were dishonest as well, and rejected a majority of them.

This rate hike hit underground clubs hardest, but GEMA wasn't done punishing them yet. GEMA also levied a rate hike based on the length of the event, jacking the rate up by 50% once the event passed 5 hours and adding another 50% hike every two hours after that. This led to astronomical charges for clubs that routinely ran 10-hour-plus events or operated around the clock. As more outrage poured in, GEMA dialed this back to a 25% increase every two hours after the 8-hour mark -- not as bad, but still unaffordable.

Obviously, GEMA felt it still wasn't making enough money from these events, so it decided to start double-dipping by cramming its hands into the DJs' pockets.

[I]n late November GEMA announced another tariff, VR-Ö, which became known as the "laptop surcharge." It applied to all music performances that use blank media such as CDs, tapes, USB sticks and hard-drives. This already existed in the past as an automatic 30% surcharge on the entirety of GEMA music licensing fees if any of the DJs used mp3s or burned CDs. Now, the surcharge would no longer be a percentage of the fees, but would instead be calculated at 0.13€ for every mp3 file on the DJ's computer. Every song over five minutes costs an extra 20% per minute. Performers and promoters all over Germany were not pleased, especially since the rate appears to charge all files on a DJ's performing device, regardless of how many songs they actually play.

The backlash

All of this led to protests against GEMA and its club-killing license fees. A petition managed to gather enough signatures to get the government's attention. The German government looked into GEMA's fee structure and its opportunistic club revenue calculations. GEMA reentered negotiations with artists' representation and rolled back its fee structure to its pre-"streamlined" levels. It also adjusted its "laptop surcharge" to a flat rate of 50 euros per 500 songs, making this more affordable for DJs, if not actually any less presumptuous and stupid. (RA says some Germans feel this is nothing more than an opportunity for GEMA to jack the rates later on its newly collected list of registered DJs.) There's also been a call for German legislators to craft policies to regulate GEMA's actions.

The outcome of this controversy has been a little better than expected, considering GEMA's horrible track record. Still, as is evidenced by GEMA's ongoing battle with Google/YouTube, the rights organization still has a long way to go before it will be considered anything other than predatory and overbearing. German artists should at least be given the chance to opt out without having to jump through GEMA's hoops.

And all rights organizations should start making an honest effort to track actual usage, rather than simply throwing more money at those artists who already have plenty. It's 2013 and the technology exists to make this possible. PROs (and GEMA) are simply being willfully obtuse by pretending they can't do anything better than cut checks while eyeballing the latest Billboard chart.

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]]>https://www.techdirt.com/comment_rss.php?sid=20130425/17042522839Thu, 24 Jan 2013 14:45:13 PSTGEMA Takes Kim Dotcom's Mega Launch Party Video Down, Despite All Songs Being ClearedMike Masnickhttps://www.techdirt.com/articles/20130124/01351421774/gema-takes-kim-dotcoms-mega-launch-party-video-down-despite-all-songs-being-cleared.shtml
https://www.techdirt.com/articles/20130124/01351421774/gema-takes-kim-dotcoms-mega-launch-party-video-down-despite-all-songs-being-cleared.shtmlhad Mega's launch video removed from YouTube. There was music in the video, but as Dotcom notes, it was either his own music, or music by musicians who all gave permission to use it. My guess is that it may have more to do with the ongoing dispute between GEMA and YouTube, which means that any video with GEMA content is blocked in Germany. However, Dotcom filed a dispute, and notes that he plans to have his lawyers discuss the matter with GEMA.

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]]>gema-againhttps://www.techdirt.com/comment_rss.php?sid=20130124/01351421774Wed, 16 Jan 2013 20:03:00 PSTGEMA Vs. YouTube Hits The Three Year Mark As Rate Negotiations Fall Through AgainTim Cushinghttps://www.techdirt.com/articles/20130113/21374021652/gema-vs-youtube-hits-three-year-mark-as-rate-negotiations-fall-through-again.shtml
https://www.techdirt.com/articles/20130113/21374021652/gema-vs-youtube-hits-three-year-mark-as-rate-negotiations-fall-through-again.shtmlGEMA, Germany's brutish performance rights organization, and YouTube isn't ending anytime soon. This licensing battle goes back to 2009, when Google's contract with GEMA ended and the German PRO asked for $0.17 per view, a rate Google claimed was "without comparison in the history of online music." (By comparison. YouTube was paying PRS, the UK performance rights group, $0.0034 per view in 2009.) GEMA countered that it had offered to take $0.01 per stream, but wanted YouTube to cough up more usage data in exchange for the cut rate.

GEMA went on to sue YouTube in a 2010 test case for distributing copyrighted material without permission — holding it responsible for copyrighted material uploaded by its users. Then in April last year a German court ruled that YouTube must install software filters to prevent users uploading content whose rights GEMA holds.

After a couple of lawsuits, GEMA returned to the "negotiating" table, this time with an offer a bit more in line with reality.

Die Welt reports that GEMA wants the German Patent and Trademark Office to arbitrate on whether its proposed rate of 0.375 cents per stream is appropriate — but YouTube is arguing for a lower rate.

Not only that, but another German court is in the process of defining YouTube's role on the web, something that could potentially see YouTube remove itself entirely from Germany.

A Hamburg court is already arbitrating another row between GEMA and YouTube over how the platform should be defined. GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties. YouTube, on the other hand, says it is a hosting service which simply makes space available to its users.

The push here is to remove any sort of "safe harbor" (such as it exists in German law) and hold YouTube entirely responsible for anything uploaded by its users. Framing YouTube as a content provider puts it right in the legal crosshairs, which is where GEMA wants it. Despite the efforts made by YouTube to curtail infringement, GEMA still wants to see it pay more.

Of course, GEMA's doing this "for the artists." And those artists must be thrilled, what with the world's most popular video streaming site serving up this message, rather than actual videos, all too frequently.

And wouldn't you know it, GEMA also has a problem with the message posted by YouTube, which has become visual shorthand for the German YouTube Experience.

GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany that blames GEMA for the impasse. In November last year, GEMA head Harald Heker accused YouTube of deliberately misleading German users with the notice.

"The notice about GEMA is being posted wilfully, purely to stir opinion," he told WirtschaftsWoche magazine at the time. "YouTube is trying to awaken the false impression that the failure to license is GEMA's responsibility. That is simply wrong."

This sounds familiar. Those blocking or taking down videos for various violations seem to think that YouTube should keep them free from criticism, too. Considering YouTube has already negotiated licenses with various other PROs, including ASCAP and the infamous PRS, it certainly seems likely that GEMA's contentious relationship with, well, just about everyone, might have something to do with the "failure to license." GEMA can complain about the "impression" this message makes, but if it were solely up to Google, German citizens wouldn't be seeing this message at all. Here's Google's statement:

YouTube believes that rights holders and artists should benefit from their work. We have dozens of collection society deals in place across more than 45 countries because we provide an important source of income for musicians and a platform where new artists can be discovered and promoted. Music labels are generating hundreds of millions of dollars on YouTube every year. Artists, composers, authors, publishers, and record labels in Germany are missing this opportunity as a result of GEMA’s decisions. We remain committed to finding a solution with GEMA compatible with YouTube’s business model so that we can again provide a source of revenue for musicians and a vibrant platform for music lovers in Germany.

That's the crux of the situation. The artists, composers, etc. aren't just missing these opportunities -- they're not even being allowed to have these opportunities, thanks to GEMA's insistence on combative, hardline tactics. GEMA hasn't done much for the artists it "represents," but it's doing a great job turning Germany into a cultural island.

Recently, GEMA was given permission by the German parliament to assess levy increases of up to 1,400% on some of Germany's most iconic underground clubs, threatening their continued existence. The reason given for granting GEMA its exorbitant requests was, unbelievably, that it was too difficult to assess performance rights fees accurately. GEMA's new "simplified" rates are based purely on the size of the venue and the length of the event -- it has nothing to do with whether or not GEMA represents the artists played.

It now appears that GEMA are attempting to knuckle down even harder on club performances. So far this has only – to our knowledge – been reported on German language websites, but at the heart of these newly proposed set of changes is a tax (or “laptop surcharge”) on DJs playing music from laptops, to the tune of 30% for every music file under five minutes with an increase of 20% for each additional minute. What we’re unsure about is whether this only refers to files that are played, or all music on the offending laptop – we’d presume the former, but the post on Tanith implies the latter (“e.g. 10,000 mp3s on the DJ laptop would [require] 1,300 Euros”).

It's unclear at this point whether GEMA is assessing this fee for each track played or each track on the hard drive. Considering its "difficulty" with accurately tracking music played, I would assume GEMA will opt for a levy on the contents of the drive, which will be less "onerous" and result in larger fee assessments. If this new fee is levied only on the tracks actually played, this means GEMA has access to actual tracks used during the event, and therefore should charge only for covered artists. But GEMA won't do that. Instead, it will go for whichever fee is larger and easier to assess. Considering 10,000 tracks is probably "traveling light" for any respected club DJ, a 1,300 Euro assessment is probably on the low end.

This is stupid, short-sighted and completely GEMA-like, the last of which is probably the greatest insult of all. Supposedly, this additional "laptop surcharge" was negotiated by representatives of the nightclub industry itself, giving the appearance that GEMA is actually working with club owners to work out mutually beneficial licensing. FACT points out that, in fact, this is just business as usual for the PRO megathug. (The info sheet from DDU and DDO is available here.)

The proposal has reportedly been negotiated with the German Discotheques and Nightclubs unions (DDU and DDO). Dean Driscoll, of German-based promotions company Tailored Communication, explained on Twitter this morning that these unions are “sub-branches of GEMA populated solely by GEMA members.”

It's a rigged game, with GEMA selling out the artists it represents by systematically running venues into the ground. This latest fee is another example of its outsized sense of entitlement and zealous pursuit of every possible revenue stream. The audacity of leveraging a new fee simply because of the technology involved has nothing to do with helping its artists and everything to do with cutting itself in on the ongoing migration of DJs to laptop-driven live sets.

As some commenters at FACT point out, this sort of per-MP3 fee has already been deployed in Hungary and Poland, so it's not the first time DJs have been charged for the contents of their laptops. Another commenter notes that Hungary's version is a per file fee, so if GEMA follows suit, DJs will be charged for every music file on their hard drive (unplayed or not) along with files on removable drives and burned CDs. There's no indication that the PROs assessing this MP3 surcharge have any interest in determining if the tracks they're collecting on are actually under their purview.

In the real world, this is called running a protection racket. Out in the PRO world, it's just business as usual.

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]]>perhaps-GEMA-could-cut-out-the-middleman-and-have-clubgoers-empty-their-walletshttps://www.techdirt.com/comment_rss.php?sid=20121203/20460521215Fri, 9 Nov 2012 05:35:55 PSTGEMA Gets Bailed Out By Germany's Parliament; Allowed To Proceed With Venue-Killing Rate HikesTim Cushinghttps://www.techdirt.com/articles/20121106/21382720956/gema-gets-bailed-out-germanys-parliament-allowed-to-proceed-with-venue-killing-rate-hikes.shtml
https://www.techdirt.com/articles/20121106/21382720956/gema-gets-bailed-out-germanys-parliament-allowed-to-proceed-with-venue-killing-rate-hikes.shtmlIP thug GEMA is no longer just a threat. Back in July, GEMA decided to "streamline" its convoluted fee structure. Naturally, it decided to smooth things over in a upward motion, raising the fees charged to these clubs by up to 1,400%. This sparked protests against GEMA's tactics and a petition with 60,000 signatures was brought to the Deutsches Bundestag (Germany's parliament). Unfortunately, the Deutsches Bundestag punted, suggesting those unhappy with the new fee structure negotiate directly with GEMA. [However you spell "LOL" in German goes here.]

The petition itself deployed an interesting tactic, targeting the legality of the "GEMA presumption."

The petition, which began circulating in August, specifically protested the so-called "GEMA presumption," i.e. GEMA's method of deciding tariffs for clubs and festivals based on the assumption that they own rights to 100% of the music being played there. The reasoning behind this is that it would be too difficult to sort out which tracks were or weren't written by GEMA members. This method is part of what allows GEMA to decide their tariffs based purely on the amount of space in a venue and the duration of its events, without necessarily knowing what music was played.

Not much of a "method," is it? It's exactly what the protestors call it: "presumption." Rather than make any attempt to even make a ballpark guess at the percentage of music GEMA might actually be able to collect on, GEMA has bullied its way to a supremely privileged position that allows it to claim tariffs on 100% of any music played in nearly any venue. The duration of the events works against the underground clubs as well, as their extended hours drastically increase the fees GEMA collects.

The audacity of this claim (and the unwillingness to do any legwork) is astounding. Whatever hold GEMA has over the government, and by extension, Germany's music consumption, far surpasses the power of other PROs, labels and IP groups around the world.

Resident Advisor points out that this isn't the first time GEMA's "presumption" has been challenged.

The GEMA presumption has been contested before. One study by Berlin's Club Commission sampled everything that was played at Berlin clubs like Watergate and Weekend over one weekend, and found that as many as 35% of the records played were unknown to GEMA...

While GEMA could still claim that its artists provide a larger share of the records played in these clubs, it's still a long walk from 65% to 100%, that latter percentage being what determines the fees assessed. Unfortunately, the Bundestag sided with GEMA in this earlier action, stating that any alternative would be "too cumbersome" for the PRO to utilize for its collection efforts.

This second concession to GEMA by the Bundestag effectively allows GEMA to set rates with impunity and frees it from having to determine actual music usage. In addition to granting GEMA even more power, it likely dooms several iconic Berlin clubs to extinction, thanks to rate increases that reflect only GEMA's self-serving "streamlining" rather than the actual music played or the clubs' actual income.

Organizations like GEMA are supposedly "protecting artists" by imposing these fees. There's some "protection" going on here, but it's got nothing to do with art.

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]]>your-shakedown-is-GO!https://www.techdirt.com/comment_rss.php?sid=20121106/21382720956Mon, 23 Jul 2012 03:04:00 PDTGEMA Hikes Venue Performance Royalties 500%, Threatens Germany's Underground Club SceneTim Cushinghttps://www.techdirt.com/articles/20120717/21191419737/gema-hikes-venue-performance-royalties-500-threatens-germanys-underground-club-scene.shtml
https://www.techdirt.com/articles/20120717/21191419737/gema-hikes-venue-performance-royalties-500-threatens-germanys-underground-club-scene.shtmlGEMA is killing the music industry. Despite needing artists to survive, GEMA seems particularly hellbent on destroying any venue these artists might use to make money in its quest to secure even more money. It takes a certain level of diabolical shortsightedness and greed to "elevate" yourself above the rest of the PROs into "Most Hated" status. Considering other PROs have done such endearing things as shakedown the Girl Scouts and non-profit charities for spare change, GEMA has its work cut out for it.

Maybe it's the famous German industriousness that has provided GEMA with the impetus to turn Youtube into a massive collection of "Sorry, this content is not available in your country" messages. Maybe it's some form of corporate sociopathy that has turned it into a self-destructive monster capable of destroying artists' futures in the name of artists' "rights."

GEMA, the organisation responsible for collecting mechanical copyright fees on behalf of some 65,000 artists in Germany, have announced a price hike which could spell the end for some of Berlin's most revered clubs. If the changes go unchallenged, the legendary Berghain - facing a fee hike of 1,400% - will shut after its NYE party this year; the similarly monolithic Watergate is likely to go the same way, claiming its mechanical copyright fees will be increased from €10,000 per year to €200,000.

As is par for the course in instances like these, it's all about "fairness" and "putting money in the pockets of artists." But like every other PRO, GEMA exists to collect fees and redistribute them to the artists, starting at the top. Those most heavily represented by chart success, airplay and radio exposure get the largest chunk, with little to nothing reaching those artists operating outside the mainstream (like, say, THE UNDERGROUND), many of whom may not even be registered with GEMA.

Ostensibly, GEMA is attempting to streamline its fee structure, but doing so in such a way that the most direct beneficiary is GEMA itself. On top of that, an additional levy targets underground clubs, and their lengthy events, nearly exclusively:

In the new scheme, commencing 1st January 2013, the complex existing system of eleven different fee structures is being replaced with just two: monthly charges will be calculated as a percentage of ticket price and relative to the size of the venue. There will, however, be a 50% surcharge if events last longer than five hours, and a similar increase after another three hours. Der Spiegel calculates that, "for an average Berlin club with 410 square meters of space, charging €8 entrance and running two events per week from 10 p.m. until 5. a.m, the price paid to GEMA will rise from the current €14,500 to some €95,000 - an increase of 560%". It seems evident that these plans favour venues (such as bars and gig spaces) with shorter opening times, placing a disproportionate financial burden on clubs. Legendary spots like the Berghain, renowned for the kind of marathon all-weekend sessions largely prohibited in the UK due to stricter licensing, will fare the worst.

GEMA has it all figured out, though. You can nearly hear the condescending smirk wrapped around this statement by Regional Manager Lorenz Schmid.

"The way I see it, [clubs have] been paying far too little in the past. I see no problem for a club manager if he has to pay €1.20 out of €12".

Of course you think it's manageable. You're the one collecting the fees. When you're on that end, it all seems like a drop in the bucket. Those on the other side see it differently. It's another unexpected cost to factor in, and when you're running a club that caters to the underground, you don't really enjoy the sort of profit margins that more mainstream events and entities do. GEMA is killing off some of the few outlets for underground artists in order to further reward the top of the heap. Makes sense. Fortunately, the underground scene isn't taking this lying down.

The Berlin community isn't taking the change lying down: on 25th June, 5,000 gathered to protest outside GEMA's summer party; on the 30th, more than 2,000 clubs across the country stopped the music for five minutes to raise awareness of the new fees... High profile artists including Alec Empire, Blawan, The Black Dog, Mike Paradinas and Steffi have spoken out against GEMA's plans. The German patent office are apparently investigating the legality of the scheme, but they won't reach a decision before the fees come into effect - which may be too late for many of Berlin's clubs.

There is also an online petition, which you can sign here. Given the historical importance of Germany's underground club scene, as well as its contribution to Germany's tourist industry (more than 35% of visitors cite the city's nightlife as a major reason for their visit, according to the Guardian), it would be incredibly disappointing to see it killed off by a rent-seeking agency looking to further reward the top 5% of artists. Maybe this backlash will highlight the stupidity of destroying outlets for artists in the name of "protecting" artists.

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]]>'creative'-destructionhttps://www.techdirt.com/comment_rss.php?sid=20120717/21191419737Fri, 13 Jul 2012 03:14:00 PDTIs The EU's Proposed Reform Of Music Licensing Doomed From The Start?Glyn Moodyhttps://www.techdirt.com/articles/20120712/11333119676/is-eus-proposed-reform-music-licensing-doomed-start.shtml
https://www.techdirt.com/articles/20120712/11333119676/is-eus-proposed-reform-music-licensing-doomed-start.shtmlMusic collection societies often figure in Techdirt thanks to their attempts to wring licensing payments from people on absurd grounds, like trying to make them pay for playing music to horses, or for singing old folk songs. But in Europe, there's another issue. Because each country has its own music collection society, digital music startups wishing to operate across Europe must negotiate not one, but dozens of separate licenses – a major obstacle to overcome.

New digital technologies are opening up great opportunities for creators, consumers and businesses alike. Increased demand for online access to cultural content (e.g. music, films, books) does not recognise borders or national restrictions. Neither do the online services used to access them. This is where collecting societies come into play, in particular in the music sector, where they collectively manage the licensing of copyright-protected music tracks for online use on behalf of composers and lyricists and collect and redistribute to them corresponding royalties.

However, some collecting societies struggle to adapt to the requirements of the management of rights for online use of musical works, in particular in a cross-border context. As a result of today’s proposal, those collecting societies willing to engage in the multi-territorial licensing of their repertoire would therefore have to comply with European standards. This would make it easier for service providers to obtain the necessary licences for music to be distributed online across the EU and to ensure that revenue is correctly collected and fairly distributed to composers and lyricists.

That reference to collecting societies that "struggle to adapt to the requirements of the management of rights for online use of musical works" is a pretty obvious dig at organizations like GEMA, which has been extremely inflexible when it comes to online licensing of music in Germany. So we can probably expect vociferous resistance to any change from many of the collecting societies that have enjoyed milking their legal monopolies to the full. Surprisingly, though, some artists don't seem too enthusiastic either:

A proposed EU law to give musicians more rights over their royalties has angered bands like Radiohead and Pink Floyd, who accused the European Commission of breaking promises to tackle the problem of musicians' missing pay.

The issue here seems to be that collection societies have a tendency to hold on to money that they should be distributing to artists, also referred to by the European Commission. The fact that musicians have already gone on the attack suggests that we are going to see some fierce lobbying coming from multiple directions. However, it may be that this directive is doomed to fail for quite another reason.

Last week’s vote on ACTA -- although hardly a surprise for those who’ve been following – was a reminder about the big debate currently going on, about how to balance intellectual property rights with Internet freedoms

For me it’s about making it easier for artists to promote their work widely, and make a living from it: without constraining the immense innovation of the online world. And, for me, the current copyright system achieves all of those objectives poorly.

That’s why I’m convinced we need to reform copyright for the digital age. For me, merely making enforcement more and more heavy-handed is not the solution -- especially if it results in draconian measures like cutting off internet access.

But a good start – and I hope a principle on which everybody could agree – is that we should make it easier to legally access the content you love.

That's a very welcome statement, coming as it does from one of the most senior EU politicians. Significantly, she also has some words for the European Parliament regarding the proposed directive on music licensing:

our proposal needs to be agreed by the European Parliament and Council. Some previous attempts by us to modernise copyright rules -- like our relatively modest proposal on orphan works -- were significantly watered down by the legislator. This time I hope the Parliament and Council are more aware of the views citizens have expressed: that people love the openness of the Internet, and want easier access to more content.

That "modest proposal on orphan works" was gutted by the relevant European Parliament committee, as a previous Techdirt post explained. One key reason why the final form of the directive turned out so badly is that its rapporteur (the EU parliamentarian with overall responsibility for the legislation) was the copyright maximalist Marielle Gallo, who was not only one of the few to vote in favor of ACTA, but went so far as to brand ACTA dissent as a "soft form of terrorism".

Unfortunately, it seems that Gallo will also be the rapporteur on this new music licensing proposal. Assuming she gets her way, that pretty much guarantees that any directive that emerges from the long process of political wrangling won't do much to address the deep underlying problems with music licensing. It may even make them worse, judging by what happened with the hostage works directive under her guidance.

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]]>signs-aren't-goodhttps://www.techdirt.com/comment_rss.php?sid=20120712/11333119676Tue, 5 Jun 2012 20:59:00 PDTGermany Increases 'You Are All Pirates' Tax On Solid State Media By 2000%Glyn Moodyhttps://www.techdirt.com/articles/20120601/07161319164/germany-increases-you-are-all-pirates-tax-solid-state-media-2000.shtml
https://www.techdirt.com/articles/20120601/07161319164/germany-increases-you-are-all-pirates-tax-solid-state-media-2000.shtmlTechflaws alerts us to an announcement by ZPÜ, the organization responsible for setting the levy on storage media in Germany, that fees will rise rather significantly (German original). For a USB stick with a capacity greater than 4 Gbytes, the tax would increase from 8 eurocents (about 10 cents) to 1.56 euros (about $1.93), a rise of 1850%; for a memory card bigger than 4 Gbytes, the fee would go up from 8 eurocents to 1.95 euros (about $2.42), an increase of 2338%.

No justification for such a huge jump was offered, but since one of the constituent members of ZPÜ is the German music collection society GEMA, which seems to have an unlimited sense of entitlement when it comes to demanding money from the public, that's hardly a surprise.

In particular, no rationale is given for including memory cards, which are used almost exclusively in cameras to record content produced by end-users -- so the idea that the levy is somehow justified as a way of compensating creators for revenue supposedly "lost" by piracy is manifestly absurd.

Basically, this outdated and insulting approach treats all Germans using digital storage as if they were pirates. Of course, arbitrarily imposing 2000% tax hikes on storage is probably the quickest way to turn them into something much more dangerous to GEMA and its friends: ardent supporters of the German Pirate Party....

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]]>how-not-to-win-friendshttps://www.techdirt.com/comment_rss.php?sid=20120601/07161319164Mon, 14 May 2012 19:30:00 PDTWhat If There Was A Music Collection Society That Actually Understood That Free Isn't Always Bad?Mike Masnickhttps://www.techdirt.com/articles/20120509/02510618838/what-if-there-was-music-collection-society-that-actually-understood-that-free-isnt-always-bad.shtml
https://www.techdirt.com/articles/20120509/02510618838/what-if-there-was-music-collection-society-that-actually-understood-that-free-isnt-always-bad.shtmlC3S, or the Cultural Commons Collecting Society is trying to enter the market in Europe in a much more culture-friendly manner:

C3S is a collaborative effort to found a new and ground-breaking European collecting society for musical creators to register their works outside of traditional schemes, released under free licences for commercial exploitation. More than just for works published under Creative Commons Licences, C3S is open for other free licences as well.

The new operation wants to encourage free distribution for non-commercial use, and a much more reasonable (and appealing) deal for both musicians and consumers. Just the fact that the organization has to make it clear that members are encouraged to make use of free licensing is an amazing step forward. Compare that to organizations like GEMA that have tried refusing to recognize Creative Commons licenses, and operations like ASCAP, who insist that Creative Commons is threat to musicians, rather than a useful tool. Who knows if C3S will go anywhere, but it's nice to see that it's at least being tried.

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]]>well,-here's-a-shothttps://www.techdirt.com/comment_rss.php?sid=20120509/02510618838Fri, 20 Apr 2012 12:45:00 PDTHuh? Totally Clueless German Court Says ContentID Isn't Good Enough, YouTube Must Block Infringement By KeywordsMike Masnickhttps://www.techdirt.com/articles/20120420/11573918587/huh-totally-clueless-german-court-says-contentid-isnt-good-enough-youtube-must-block-infringement-keywords.shtml
https://www.techdirt.com/articles/20120420/11573918587/huh-totally-clueless-german-court-says-contentid-isnt-good-enough-youtube-must-block-infringement-keywords.shtmllegal fight in Germany between YouTube and the overbearing collections society GEMA. German law is a bit bizarre in that it has very little regard for secondary liability protections, and often seems to default to blaming third parties for the actions of their users. On top of that, GEMA is incredibly powerful and controlling in Germany. When I was there a few years ago (in part to discuss this case), I had musicians explaining to me that they had "secret websites" because GEMA wouldn't let them offer their own music for free. The GEMA/YouTube dispute centers around the fact that GEMA wants YouTube to pay a fixed fee every time a video that includes a GEMA-covered song is played (and GEMA has actually suggested the fee for each stream should be identical to the cost of a download -- no joke). After suing YouTube/Google, GEMA refused to negotiate, making Germany the only modern country in the world in which a collection society didn't work out a deal with YouTube (and meaning that Google started blocking tons of music videos in Germany).

Unfortunately, the court has now ruled in the case, and the results seem ridiculous. It has said that YouTube is liable when users post videos (third party liability concepts still just don't make sense to German courts). Even more ridiculous, however, is that the court has said that YouTube's famous ContentID system is not enough. Instead, it must also install a keyword-based filter to block GEMA songs from being uploaded. Keyword-filters? Really. We've done this before a bunch of times and it doesn't work. At all. Keyword filters are really stupid ways to deal with these kinds of things. First off, they tend to block all sorts of legitimate content. But, more importantly, users figure out how to get around them in less than an hour. They just start coming up with easy-to-decipher substitutes. Comparing a keyword filter to ContentID is like comparing a human strapping on wings to a modern fighter plane. One of them works and can actually get the job done. One of them just makes you look like an idiot.

The only "concession" the court appears to have given YouTube is that it only expects such filtering to work going forward, rather than having them search the archive. That, of course, is barely a concession at all. If I remember correctly, this particular court, in Hamburg, is somewhat notorious for siding with copyright holders, so I wouldn't be surprised to see an appeal on this case...

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]]>total-failurehttps://www.techdirt.com/comment_rss.php?sid=20120420/11573918587Fri, 2 Mar 2012 18:49:21 PSTSomething's Not Right: German User Has To Use Chinese Proxy To See New Music VideoMike Masnickhttps://www.techdirt.com/articles/20120228/17044017902/somethings-not-right-german-user-has-to-use-chinese-proxy-to-see-new-music-video.shtml
https://www.techdirt.com/articles/20120228/17044017902/somethings-not-right-german-user-has-to-use-chinese-proxy-to-see-new-music-video.shtmlGEMA's bizarre fight against YouTube for a few years now, in which all major music videos are blocked from YouTube in Germany because GEMA is suing YouTube and refuses to even discuss a potential license until the lawsuit is over. As we noted recently, this is even frustrating the labels who feel that GEMA is costing them serious money in not just doing a deal to make videos available. While researching something else on Twitter, I came across this telling tweet, from an individual in Germany talking about how they had to use a Chinese web proxy just to watch a new Sting video, and properly notes just how screwed up the world is when people in Germany are relying on Chinese web proxies just to watch music videos. I'm still trying to figure out what good this does anyone... other than GEMA.

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]]>ah,-gemahttps://www.techdirt.com/comment_rss.php?sid=20120228/17044017902Mon, 27 Feb 2012 11:33:00 PSTSony Music Exec: The Internet Is Full Of Opportunities & Not A Problem; Intransigent Collection Societies, However...Mike Masnickhttps://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml
https://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtmlincredibly aggressive music collection society GEMA is involved in a big lawsuit against YouTube for posting videos with music in them. YouTube has done licensing deals with collection societies around the globe, but GEMA refuses to even sit down to start a conversation until after the lawsuit happens. Because of that, all GEMA music in Germany is barred from YouTube entirely. This leads to some situations in which totally licensed videos are banned in Germany. This has been going on for years and years with no change.

GEMA, of course, says that it's doing this to "protect" the artists. But as I've pointed out in the past, many, many artists in Germany don't believe that at all. In the past we've noted that GEMA tried to ignore Creative Commons licenses as well as barred members from offering their music for free (two years ago, when I was in Germany at a music conference, I had multiple artists explain to me they had an "official" website where they would "sell" music to keep GEMA happy... and an "unofficial" website where they'd offer their music for free. The whole thing is crazy.

In fact, it's gotten so crazy that apparently even the major labels are getting sick of it. TorrentFreak has the news of a top Sony Music exec, Edgar Berger, who runs their international business, talking about how the internet hasn't been a problem at all, but has created tons of new opportunities. The ones creating the real problems for the industry? GEMA. Because the music is blocked "to protect the artist," it appears that the labels and artists are missing out on large revenue checks from YouTube's ContentID...

“There is absolutely nothing to complain about. The Internet is a great stroke of luck for the music industry, or better: the Internet is a blessing for us,” Berger said.

“You can not blame the Internet for harmful excesses. On the contrary. It has brought us tremendous new opportunities,” he added.

But with these new opportunities come new rivals from an unexpected corner. According to the Sony boss, music rights collecting agencies are now preventing innovation in certain countries.

In Germany, for example, most YouTube videos by Sony artists are blocked due to the music rights group GEMA, and not because Sony wants it that way. When asked why Sony’s music is not available on YouTube in Germany, Berger responded bitterly.

“It’s not because of us. You must direct this question to the German collecting agency GEMA, they licensed the copyright very restrictively.”

Quite a contrast from the "old" story, right? Here's a situation in which technology and business model innovation via Content ID are creating massive new revenue opportunities for the entertainment industry -- and the old school system of excess protectionism is denying them that revenue.

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]]>more-people-getting-ithttps://www.techdirt.com/comment_rss.php?sid=20120225/02270617882Mon, 14 Nov 2011 19:37:27 PSTGEMA, Once Again, Demands Royalties From Creative Commons Music It Has No Rights OverMike Masnickhttps://www.techdirt.com/articles/20111114/02034116758/gema-once-again-demands-royalties-creative-commons-music-it-has-no-rights-over.shtml
https://www.techdirt.com/articles/20111114/02034116758/gema-once-again-demands-royalties-creative-commons-music-it-has-no-rights-over.shtmldemanding royalties for Creative Commons music it has no rights over. We've heard of it happening multiple times, and now it's happened again, and the details are even more ridiculous than usual. In this case, a music festival/dance party in Leipzig planned to use only Creative Commons music. Not only that, but the organizers appeared to go above and beyond to make sure this was done properly, not just making it clear to the DJs, the public and all attendees, that only CC music would be used, but they also let GEMA know. In response, GEMA demanded the full list of all artists whose music would be played, including their "full names, place of residency and date of birth."

After all that, GEMA still sent an invoice for 200 euros, claiming that they weren't positive everyone on the list wasn't covered by GEMA, and because there were a few pseudonyms, those musicians might be covered by GEMA... and thus the organizers should pay up. And, under the rather ridiculous current law in Germany, the organizers have the burden to "prove" that all of the artists are not covered by GEMA, rather than having GEMA prove that any particular artist is covered. That means, even if the organizers were correct and none of the artists are covered by GEMA, it still doesn't matter, because the organizers have to go out and prove that each individual artist is not under GEMA's umbrella. And people wonder why the Pirate Party is getting so much attention in Germany.

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]]>entitlement-societyhttps://www.techdirt.com/comment_rss.php?sid=20111114/02034116758Mon, 10 Oct 2011 05:29:58 PDTGEMA Strikes Again: Demands Licensing Fees For Music It Has No Rights ToMike Masnickhttps://www.techdirt.com/articles/20111006/02225416232/gema-strikes-again-demands-licensing-fees-music-it-has-no-rights-to.shtml
https://www.techdirt.com/articles/20111006/02225416232/gema-strikes-again-demands-licensing-fees-music-it-has-no-rights-to.shtmlcollect licensing fees for some music that was released under a Creative Commons license and by artists who are not currently GEMA members (some left in disgust).

This isn't new, of course. Two and a half years ago, we wrote about GEMA refusing to recognize Creative Commons licenses from Jamendo, and insisting that people still had to pay them. Similarly, in this case, even after it's been pointed out to them that the tracks were not under GEMA's purview, the organization insisted that the artists probably just "forgot to register the tracks," and asked the producers of the album to provide more proof that the songs weren't covered. Talk about entitlement.

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]]>good-ol'-GEMAhttps://www.techdirt.com/comment_rss.php?sid=20110908/06253815847Mon, 18 Jul 2011 16:33:00 PDTSuccess! Sita Sings the Blues Once Again Viewable on German YoutubeNina Paleyhttps://www.techdirt.com/articles/20110718/13155615154/success-sita-sings-blues-once-again-viewable-german-youtube.shtml
https://www.techdirt.com/articles/20110718/13155615154/success-sita-sings-blues-once-again-viewable-german-youtube.shtmlSita Sings the Blues movie is once again viewable in Deutschland:

I assume this is because last week I posted this video, complaining about why my 100% legal and painstakingly and expensively licensed movie was blocked in Germany:

Apparently many Germans are none too pleased with GEMA themselves, as indicated by interesting comments here. Some industry shills weighed in as well, but it looks like popular sentiment is against them. The story was shared widely, including in Der Spiegel and the New York Times online editions.

It's not clear how an American YouTube user is supposed to contest takedowns in Germany. When I was in Berlin recently, it was suggested I find a German lawyer to take some sort of action. At the very least, I would need someone in Germany to contest the takedown on my behalf. I imagine that would have been a slow and possibly expensive process. Then I thought of making this video. Although it took some work (writing a statement -- yes I know it's an imperfect statement, I did the best I could with the knowledge I had -- shooting the video, recording the audio via a separate mic, transferring files, editing, compressing, etc.), it was less work than managing an international legal process. And it got results fast! Better still, it contributed to ongoing debates about GEMA and Intellectual Pooperty in general.

My thanks to everyone who helped spread the word about this, and especially people in Germany who checked the Sita Sings the Blues URL and confirmed when the movie was blocked, and when it was unblocked.

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]]>better-than-lawyershttps://www.techdirt.com/comment_rss.php?sid=20110718/13155615154Thu, 14 Jul 2011 11:21:12 PDTWhy Sita Sings The Blues Is Perfectly Legal In Germany, But You Still Can't Watch It On YouTubeMike Masnickhttps://www.techdirt.com/articles/20110714/00141315084/why-sita-sings-blues-is-perfectly-legal-germany-you-still-cant-watch-it-youtube.shtml
https://www.techdirt.com/articles/20110714/00141315084/why-sita-sings-blues-is-perfectly-legal-germany-you-still-cant-watch-it-youtube.shtmlvideo she put up about how her movie, Sita Sings the Blues is blocked by YouTube in Germany, thanks to GEMA, the music collection society in Germany.

Since I know a little bit about the ongoing fight between GEMA and YouTube in Germany, I asked Nina if it was okay to do a post, discussing some of the details. We've written about GEMA a few times before, and last year, I went to Berlin and interviewed YouTube's Patrick Walker on stage at PopKomm/All2gethernow, specifically discussing YouTube's ongoing fight with GEMA. The details are a little different than what Nina suggests in the video, though she's absolutely correct that this is very much GEMA's fault. Even though Nina has a paid-in-full license with the various music companies that say displaying/performing her movie for free in Germany is entirely legal, GEMA has taken a ridiculous hardline stance with regards to YouTube. It believes that YouTube needs to pay it ridiculous sums of money for every video on the site that includes any GEMA-licensed music.

Other collection societies around the world have made agreements with YouTube, and worked out reasonable royalty rates for performances. Except GEMA. If I remember correctly, GEMA may be the only major remaining collection society which has not worked out a royalty rate with YouTube, and instead has been fighting a battle in German courts against YouTube. Because of that, and because of some clearly ridiculous court rulings, which suggest that YouTube (rather than its users) are liable for any infringement on the site, YouTube is blocking all videos that it comes across that include GEMA music.

Thus, I believe that the reason Sita Sings the Blues has been taken down is not, as Nina suggests, because of a direct takedown notice by GEMA (though, that's possible), but more likely because of YouTube needing to avoid liability from crazy German court rulings and GEMA's overinflated belief in what a "reasonable" royalty rate would be. Now, notice the key part here: the artist in this case wants the video to be online. Nina is pissed off that it's offline. She's paid quite a bit of money to the various music publishing entities to have the rights to show the movie worldwide, and the one blocking that is GEMA.

This is not an uncommon occurrence in Germany, unfortunately. Because of the way the laws work in Germany, those who have deals with GEMA effectively give up all of their own rights on such things. When I was in Germany, I spoke with multiple artists who were freaking out because they couldn't give away their own music, because GEMA didn't allow it. Aritst would show me their official webpage, without free music, and then their "secret, unofficial" web page with the music they wanted people to download. GEMA, which seems to be run by people entirely out of touch with how music works today, simply insists that no one can give away music for free... because then GEMA doesn't get to collect money. Furthermore, for those who try to get around GEMA and used alternative licenses, GEMA has been known to ignore such licenses, and insist that people still need to abide by GEMA's rules.

This is not a healthy situation. You basically have an out of touch bureaucracy that thinks it gets to set all the rules, even if they don't match the reality in the marketplace. Because of that, artists are suffering. And the fact that YouTube is blocking Sita..., despite it being fully licensed and perfectly legal in Germany, should really wake some people up to the fact that GEMA is not helping artists at all. It's stifling them massively.

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]]>hello,-gemahttps://www.techdirt.com/comment_rss.php?sid=20110714/00141315084Thu, 30 Dec 2010 10:13:34 PSTGEMA Music Collection Society No Longer Will Let Kindergartens Get Away With Teaching Music For FreeMike Masnickhttps://www.techdirt.com/articles/20101230/02503212466/gema-music-collection-society-no-longer-will-let-kindergartens-get-away-with-teaching-music-free.shtml
https://www.techdirt.com/articles/20101230/02503212466/gema-music-collection-society-no-longer-will-let-kindergartens-get-away-with-teaching-music-free.shtmlthe schools now need to pay up (found via Slashdot). In the last few weeks, GEMA started sending out notices to these facilities, warning them to either pay up or no longer hand out sheets with music on it to students. This seems reminiscent of ASCAP demanding that Girl Scouts pay up for singing songs around the campfire. These collection societies have really gotten desperate lately, and now they're trying to shake down kindergarten students for cash. How nice of them.

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]]>ownership-societyhttps://www.techdirt.com/comment_rss.php?sid=20101230/02503212466Fri, 10 Dec 2010 13:42:00 PSTTurkey Looks To Copyright Its National Anthem After German Collection Society Tries To Collect Royalties For ItMike Masnickhttps://www.techdirt.com/articles/20101208/08480612185/turkey-looks-to-copyright-its-national-anthem-after-german-collection-society-tries-to-collect-royalties-it.shtml
https://www.techdirt.com/articles/20101208/08480612185/turkey-looks-to-copyright-its-national-anthem-after-german-collection-society-tries-to-collect-royalties-it.shtmlharming up and coming musicians while funneling money to the largest acts. However, I can't recall a collection society as aggressive and as expansionist as GEMA in Germany. When I was in Germany earlier this year, I had multiple musicians tell me how all-controlling GEMA is. Basically, if you want to use GEMA for just about anything, you effectively abdicate pretty much all of your rights to your music to GEMA. Two separate musicians showed me how they had secret websites where fans could download their music, because GEMA wouldn't let them give away their own music for free under a Creative Commons license.

So, I'm not too surprised to hear reports that the Turkish government is now scrambling to try to copyright its own national anthem after hearing that GEMA tried to collect royalties on it. The story is a bit confusing but it appears that GEMA, in standard collection society fashion, demanded that a Turkish school in Germany pay up for performing music. The school responded that the only music that was performed was the Turkish national anthem. This is where some of the dispute comes in. It appears that GEMA believes other covered music was also performed, and its asking for royalties from that and saying it never meant to collect for the Turkish national anthem. However, the school insists that was the only song performed -- so it went to the Turkish Culture Minister to ask for help. At that point, the Turkish government realized that there simply was no copyright on the song.

Now, here's where the Turkish government also went wrong. It could have just declared the Turkish national anthem in the public domain and told GEMA to shove off. But, instead, it took the backwards-looking step of trying to retroactively copyright the national anthem. Of course, that may open up a different can of worms. The report at Spiegel notes that, technically, the heirs of the songwriter (who died in 1958) might actually be more entitled to the copyright and any royalties than the Turkish government.

So, by rushing to secure the copyright, Turkey may end up with more trouble on its hands. It's difficult to believe that a copyright makes sense for any national anthem. Just put it in the public domain and let anyone sing it.

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]]>copyright-gone-wronghttps://www.techdirt.com/comment_rss.php?sid=20101208/08480612185Mon, 30 Aug 2010 07:16:03 PDTGerman Court Says Google May Have To Police Videos On YouTube For InfringementMike Masnickhttps://www.techdirt.com/articles/20100827/16100810805.shtml
https://www.techdirt.com/articles/20100827/16100810805.shtmlAll 2gether Now conference in Berlin, I'll be on stage having a discussion with Patrick Walker of YouTube about collection societies, record labels and how they deal with sites like YouTube. Of particular interest, given the location, will be the ongoing legal fight between the German collection society GEMA and YouTube. On that note, a German court just initially side with YouTube that it does not need to block videos from appearing on YouTube, but (more worrisome), suggested that in a full trial it had a much better chance of siding with GEMA and suggesting that YouTube should police the content on the site:

"There are some good reasons to think that YouTube indeed has some duty to take care of detecting illegal uploads," Presiding Judge Heiner Steeneck said today. "GEMA has the opportunity to ask for such a ruling in regular proceedings."

The two organizations have been fighting about this for some time now, but I don't quite understand the judge's "good reasons" here. How is a third party supposed to be able to detect infringing content when many musicians and labels already put their content on YouTube on purpose? How is YouTube supposed to make the determination of "this is infringing" without additional info? Already, YouTube does have a Content ID system which will block certain uploads (or let the copyright holder monetize them) so I'm not clear how much more the judge or GEMA expects.

Separately, since I'm already mentioning my participation at A-2-N, I should also mention that I'm running an interactive "brainstorming session" on Tuesday the 7th on better ways to connect with fans and give them a reason to buy. For those attending the event, I hope to see you at either of those sessions.

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]]>that's-not-goodhttps://www.techdirt.com/comment_rss.php?sid=20100827/16100810805Wed, 8 Jul 2009 22:42:00 PDTTales Of Collection Societies Gone Wrong: GEMAMike Masnickhttps://www.techdirt.com/articles/20090706/0318065456.shtml
https://www.techdirt.com/articles/20090706/0318065456.shtml
Wolfgang Senges is digging into how this works in Germany, where some are finally questioning GEMA's actions. In delving into how GEMA works, Senges notes that its entire structure is specifically designed to really only give a small percentage of top artists a say in how GEMA operates. Everyone else just gets dragged along for the ride. Is it any wonder, then, that its policies are mostly designed to help those big artists, rather than others?